What Randi Glazer’s psychics didn’t foresee was the compelled production of their predications. If they could, maybe they would have told her to keep them out of her employee inbox.

In Glazer v. Fireman’s Fund Ins. Co., Glazer sued the Fireman’s Fund Insurance Company, alleging the company discriminated against non-African Americans and terminated her because of her religion. During the course of her employment, Glazer had utilized the services of LivePerson, a “web site that is a platform for on-line advice and professional consulting services,” namely, conversations with psychics.

The discovery issue arose when Glazer e-mailed parts of these online conversations to her work account. After reviewing those excerpts, Fireman’s Fund concluded that “every single one of them is relevant to one or more issues in this case,” including her work performance, relationships with co-workers, views regarding her treatment by Fireman’s Fund, emotional state before, during, and after her employment, efforts to mitigate damages, and personal beliefs about African-Americans. Fireman’s Fund served a subpoena requiring LivePerson to produce transcripts of all of her LivePerson communications.

LivePerson sought to quash the subpoena stating that Glazer could access and produce all of the information requested by Fireman’s Fund as to the paid chats by simply opening up a new account. Once Glazer opened the new account, LivePerson said that “all such records that were previously available to [her] – including records of chats that she may have deleted from her account – could be retrieved and linked to the interface of her new member account.”

Glazer attempted to argue that the Stored Communications Act prevented LivePerson, as an electronic communication service (“ECS”), from “knowingly divulge[ing] to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1). Similarly, a remote computing service (“RCS”) provider may not “knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service.“ Id. §2702(a)(2). Both an ECS provider and RCS provider can divulge the contents of a communication with the “lawful consent” of the originator or an intended recipient of that communication. 18 U.S.C. § 2702(b)(3). However, due to LivePerson’s own inconsistent provisions with respect to the confidentiality of communications between LivePerson members and experts, the court found that it did not have to decide whether the communications were electronically stored or whether Glazer consented. Instead, the court directed Glazer to consent to disclosure if the chats are likely to contain information relevant to the case. While not directly overriding the Stored Communications Act, the court nevertheless compels the production of Glazer’s communications.

Thus, with regard to the paid chats, the court ordered Glazer to open a new LivePerson account, to retrieve all of her available chat transcripts and produce electronic copies of them to Fireman’s Fund. As for the free chats, if Glazer was not able to obtain those when she re-opened her account, the court directed her to execute a written authorization for LivePerson to produce the additional transcripts. By directing Glazer to attempt to retrieve the chats on her own first, the privacy of her account and login credentials are still protected.

Glazer made a major error – she was engaging in these online chats that discussed her dispute with her employer through her employee work account. If she used a private email account on a personal computer, it’s hard to imagine Fireman’s Fund would have ever found out about her forays into the future. Employees should take heed – in order to keep third-party communications away from the eyes of employers and out of the hands of the court, engage in them through a personal email account, and ideally, on a personal computer.

Amanda Munsie is a Seton Hall University School of Law student (Class of 2013), where she serves as a Notes Editor for the Seton Hall Legislative Journal. Prior to law school, she graduated from the University of Maryland with a B.A. in Journalism and Government and Politics. After graduation, she will be clerking in the New Jersey Superior Court, Appellate Division.